Oracle Amended

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JANET M, HEROLD

Regional Selieitor

JEREMIAH BULLER RECEIVED
‘Aeting Counsel for Civit Rigbes

LAURA C. BREMER

Scuior Til Anomey

Office ofthe Salsitor

UNITED STATES DEPARTMENT OF LABOR
90 7th Sweet, Suite 3-700

Sau Francisco, California 94103

Tele 413) 025-7757

fax: [phone]

Emil bieme ural 20

JAN 22 2019

UNITED STATES DEPARTMENT OF LABOR
OFFICE. OF ADMINISTRATIVE LAW JUBGES

OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS, UNITED.
STATES DEPARTMENT OF LABOR,

Case No, 2017-08C-00005
Plain,

‘ORACLE AMERICA, INC.

Defendant

OFCCP'S MOTION FOR LEAVE 0 PILE A SECOND AM

DED COMPLAINT
L ANTRODUCTION

“The Office of Fedeval Contract Coraplianes (*OFCCP") socks to amend its complaint 19

futher clarify the scope of Oracle Amt

Ines (“Oracle's dserimination agains

‘employecs and applicants for employment based on information produced immediatly prior
«he Court's orders staying the case
OFCCP’s proposed Second Amended Complaint (*SAC*) SAC narrows ond claiies dhe

issues in this case, simpfifying the matters in dispute and providing » more direct path to the

tis matter. Prolitmnasy analyses of data received by ORCC in October a
November of 2017 strengthen OFCCP's original claims and coufiems thax stack parteras of
diseminaion began in atleast 2083 and continued well past the review peviod as alleged in the
cotigial complain. ‘The addtional efinsments inthe SAC should shargen the issues én dispute
between th panties aud foil te resolution ofthis maser at heating.

The SAC éeseribes in ereuor detail hows Oracle discriminated against Female, Block ar
Afican American and Asian employees a its headquaters in edseod Shores, Calimia
HQC") in compensation. Though OFCCP isnot requined 9 plead a method of proot the
SAC describes a potential pathway for this discrimination to cevor: (1) Oracle's reliance on
pat salary in setng initial pay. andor 2) the channeling af female. Black and Asian
employees into lower-paidcaveers al Oracle, See Exhibit A (Proposed Second Amended
Complaint) at 18-31, Tables 4-6, OF CC's protiminany analyses ofthe limited information
produosd in discovery so fs shows thet Oracle suppressed staning salaries for its female nd

non White employses, assigned thent io lower level positions and depressed their wages over the

“Tis case hasbeen snp since tober 207, See secon TLD, The met rcen say, ental November 13,
2018, gamed the quest a all sti in he cae ntl motions Oraele led on Oehee 23,2018 were
resohed. Decuse estas fas been ied bythe Coun the Sereary aw brings ths matin.

"The ants ako engaged in apprexiitlyone year af medaroa becvcen Getobr of 2017 and Oclaber vf 2018
“That pei oF discussion helped the partis more fly understand ea wher’ aston an many epies germane a
shes gain,
years they worked at Oracle, é. ORCCPs preliminary analyses show tat Oracle's method of
compensating employees fo et work resulted in lasses of mare tan $00 milion for feral,
Block aod Asian employees. fal YF 13-17, Tables 1-4

The SAC also narrow the bitiog elms ia dhe Amendsd Complaint, The SAC explains
that Oracle's highly diseresinauory evlege and waverly ving relies at HOCA strongly

preferred Asian recent college and university yriduanes te all cthers, This preference isso strong,

that of the approximately 500 college und university bires mate by Oracle frame 2013 to 2016,

upproximulely 450, 9c 91%, were Axion. Af. al 3

9, Table 7. OFCCP's preliminary
sali stove tha hi iseriminatory hing pater is wholly bee by the lnbor poo om
‘which Oracle draws: Onecle's targsted college and university population is aporoximatey 85%
Asian, wel below the alo reenited and employed by Oracs, Kt. A mors granular eview of
the data pruced by Oracle highlights the overall extreme preference fo hiring Astan students
Ta sever years, Orel hited zero Black or Hisponic recent eollogs and university graduates, Zl
Notonly does Orne peter to hire Asian sent eoflge and university graduates, but it prefers
Uo hire vischolling Asian recent college an university graduates. fd. I even as a prog 9
Tire set numberof recent graduates from Indian sshols each year, Wt a139, This preference

fora workforce tht is dependent on Oracle for aulhorization to work in the United States lends

itself Wy suppression a thal work force's wages, iat 9.38, Ortele's focuson hiring Asian

event college und university uraduates resulled in the refusal 10

more than 100 qualified,
coAsian, applicants fir employment. fo 37.

‘The SAC aw proves mone preci lalemen a he information th Oracle reftsed to
provide as required by Tow during the compliance review, 12, a 643-46, (also clarifies what
hata x missing due (o Oracle's refsl lo keep, mintin ond produce cri rir

information. fd Teltingly, discovery revealed that aot ony’ did Oracle refuse to praduce key

VOFCEP’s SAC dacs not allege hiring ceerimination wih reps i experienced hires, Hates, i ay
surery or wali of eitng data dimou farther ivriminaian wih eect oexperientsd Pires for
‘Grace's Profesional Technical | (7PTI"] gaup, OFCCF wil scktoamend is Complain agai allege sch
Solon,

2
documents and data i vas tequiced to keep during the compliance review and in dissove

estrayed records reluing lo its hiring process ns the case wos engomng. Ji al 945.

‘Under the liberal miles for amending she pleadings, leave to amend should be granted

Such menses will ot prjudios Orsi, This eas reverts olitigtion with discovery ill
‘open: the SAC naows some sss. and provides more deal so others, making roms
discovery more eficiont, OFCCP has sought env in good fith and here hasbeen wo une
slay i bringing dhe SAC, given that th cas has been saved since Oxtsber 2017, when Oracle
finally began producing ds date tat OFCCP rcs upon inzeisig ts claims, Therefor, the

(Court should grant OCCP leave t fle the SAC.

M1, BACKGROUND

A. The Amended Camplaint Alleged Claims Rasedl on the Fi
Information Oracle Provided to OFCCP a

id Data and
ng the Compliance Review,

‘Oracle, one of the world’s fargest technology companies, revsives over $100 million in
public raoney per year Irom leeral conleucts. See Bremer Decl. $2, Fx. | (Oeacke Faut Shee!
(Crate provides technology to the wip companies und governments worldwide); Reemer Teel. $

2 (Letver (rom FE, Connell tM. Pilotia (Aug. 7, 2007), p. 2 (Orasle stipulated “it hes been.
emvered lederal ceamraclor for aver 20-year und the lolal amount af ls yovernment contracts
has exceeded $100 milton each year since 2013),

Itis axiomatic Chat the government may sel the terms upon which Dose wishing to do
Iusiness with il must operate, See Perkins » Luke Stee! Ca, 31D US, 113, 127 (1940) ike
‘private individuals and businesses, he Government enjoys the unrestricted power to penduce its
‘own supplies, to determine chose with whoo It wil daa, and te fix the terms and conditions
upon which iCall make needed purchases"); see alse LL S Brenern tv's, tne. Eavtl. Prot,

Ageney, 600 F.2d 974, 984 (D.C.

ir. 1979) {is sted that the federal goveenmacat may
esac, fom those with whom it does business compliance with stancands oe requirements

iffoveot froma those found in the marketplace gence

). inexchange for obtaining public
money, federal conttators nit agree wolf dscrimivate against their employees or applicants
far employmnent on the basis of race, colt, sex, or national origin; they must also agree to federal
government audis of hei compliance with nondlserimination requirements. See Fxeexive
Order 11246 § 200, 30 Fed. Rog. of 12319 Sept, 24. 1965), as amended hy Hssculive Orders
11375, 12086 and 1279 and its nplementng rules and regulations (the “Exeeutve Order; see
also 41 CAR. $§ 601.12, 60-1.20, 601.435 Unlraal,Ine,». Marsal, 4R2 P, Sapp. 364, 370
(0.0. 1979) fappeoxing the nanescritsinaton obligatinns under the Feseuline Order as.
feature ofthe governments power o sol the eras oPeantracks with private parti,

In September 2014, OFC initiated w compliance review ek Orase's HQCA fii.
Ansvieris Avended Conipait, 6p. 12. Oniee only pradvee some of he information
properly sought by OFCCP. Beecer Dee. ¢/4. An analy ofthe data that Onsele fprovde
ring the compliance review reves: (1) ispories the compensation of women relative to
aman employe in the Produec Developmen, lalemation Techanlagy, ond Suppor jeb anetons
1 Oracle's HOCA 2) disparities inthe pay of Asiana, and Tks or Ativan Ametians relative
co Whites empkayed in Oracle's Product Development job lietion «tOnsle's HQCAc and (3)
disparities inthe iting noo-Asian applicants eave ts Asian opoicamts See Novice of
Violavon (Masch U1, 2016), Bremer Decl 45, Bx. 3

Based in pa on hese analyses, OFCC? fled ston Jamon 17.2047 allging
compensation and ering snd biting diseriminution. See Complaint ie an, (7, 2017} see

also Amanded Complain (led Jan,

2017 feorteting a typo}. Speciteally, the Amendxt

‘Complain alleges that Orel vilate the ecutive Crde fom ac least 2013 continting 60

the present in the following ways:

+ “Omele discciminated against qualified mate enplayees i i Information Teshology
Product Development, and Suppor tines of business or jah Toretions ot Oracle Reseed
Shores based upon see by paying them less than comparable males employed in similar

roles" (Amended Complaint pp. 1, 3, 64f 7, 16):
"Oracle discriminted ngainst qualified Abican Am

cons [and Asians] in Product
Dewvlopment roles al Orzele Rudswood Shores based upon raee by paying thom Jes than
comparable Whites employed in similar roles” (Amended Complaim pp. 1, 3-4. 614 89,
16)

+ “Oracle... continues 10 utilize a recruiting and hiring process that discrintinates agsinst
qualified Aftiean American, Hispanic and White (heroinafier “non-Asians’papplicants in
Aavor of Asian applicants, particularly Asian Indians, based upon race For positions is the
Professional Technical}, Individual Conteibutor (°P 1") job group and Product
Devolopoient line of business (or jab function} at Oracle Redivood Shores” (Amended
‘Complaiot pp. 1,4, 61410, 16); and

© Orsele refused t0 produce “various records,” and relused to produce analyses of is
‘vompensation and employment practices it was requiced to conduct pursuant fo 41 CER.
88 60.2.1 (bd), 60-3.18A, 60-34. (Amonded Complaint pp. 1, 5-6 FF H1-t8). Insofar
fas Umele aid not conduct the reviews and analyses, required by these regulations, it

dofeulted on its obtigations under the regulations. (Amended Complaint p. 5

ery
“The Amended Complsint further desetibes analyses supporting these allegations based on

the nite dats provided by Oracle during the compliance review shoving. a compensation

snapshot on Fnuaey 4.2014. and hing data fom annary 9.2015 teoogh June 30, 2084

Amended Complain pp. 1, 45, 17-10

B. Oracle Produced, For te First Time, Sigaificant Data for Exaployees
Covering 2013 through 2016 in October 2017,

As with most employment aelions, the Vast majority oF relevant information —includings

data about its applicants and employees and is hing and compensation practies and polieies—
resided in Oracle's contrl. Altiough OFCCP served requests seeking these critical documents
(hom Oracle on February 10 (two days after Oracle filed its answer) and 21, 2017, Oracle di not

produce the bulk ofthe responsive dacumtents or data util October 2017 fefght months after
OPCCP requested i). Bremer Decl. 96-13. Priar to that dots production, Oracle's

ikignton
ition preverusd OPCCP fn Inking depesitions or ablning significant discovery, Afr
the Getaher 2017 production, the mutter wns sted halting lke discovery process fora ear
‘sie the partes altemplad 0 ressve ther dispute dough mesiaton

‘On Ourpher 12,2018, afer the patos revel a impasse in motion, the OAL

ranted OFCCP's motion to reassign this ease toa new ALJ. Oracte then fled a motion

challenging his Cours authority to preside aver this ease, and the Caurt stayed the proceedings
‘aguin pending the resalution of those motions, See Noveber 13, 2018 Order. ‘The stay was

lificd on Tansy

019, Thus, tis case has ben stayed almost the enti time since Oracle
made its nite dat proutions fo October and November 2017,

Although additional discovery remrins 1o be conducted, ater receiving Oracle's
production of docurncns and data in Ostober and Novemer 2017, OFCCP conducted

preliminary analyses of the dats, which provide the basis for dhe SAC.

C. OFCCP Secks to Revise [ts Claims Based on Evidence OFCCP Obtalned
rough Discovery.

“The proposed SAC revises OFCCP”s claims and alleges wes fats nelle ta Oraule’s

discriminstion in recent years, based on the additional data and infomm

jon Oxavle provide in

discovery.

‘The compensation discrimination claims semain essceatly

hanged. The SAC
continues to allege!
‘Since at least Janvary 1. 2013, Orel diseriminatad against qualtied female employees in ts

Product Development, Information Technology, and Support job Functions at Uracle”s

“altvough Oracle praduccddecuments nd dpa befoe th pais began mediating. more Informant resuiced,
inching imeral pay equity analyses ar supplementation of te roe aul compensation data covering January
10017 through be psoas Brier Decl € 15. OFCCP acpaes fussing «Bona deeomens ard daa fom
‘Gece, a wel a fake depos hich faves ye Beg, The elinenents fo OFCCP' allegalins nthe
SAC wi noc lupe the eautse of this gion; oft hy ll hep mave de tert ear ey ro
ne ally DSCC salle.
dneadquarters based upon sex by paying chow less than eamparable mates enapoyed in snilar
rales.

4 Since at Seat Januory 1,201, Oracte disertninate against qualted Asian and Muck oe
African American cmployecs ia its Praduet Development job fonction at Oraule’s

‘headquarters bosed on race or ethnicity by paying them less han comparable White

employees employed in sinitar rules.
Eshibit A 112-31, Whe the orginal Amended Complain included a asia! analysis hse
09 compensation data ftom 2014, the proposed SAC inclues a preliminary aaalssis ofthe data
Ocal prodoved in Ocloher and November 217, sponnig owe yeors, from Sanuary 1,2012

through Decent

31,2016. fd, The dala over this four-year period reveal Ona the ey gap for

‘hese groups has po

iste Uoughoul thee employment by Oracle, 1d. al $f H-U6, Moreover,
the data Oracle produced revels thatthe longer tht female unl Asian employees stay with
‘Oracle, he es they ae pin elation to oer employees. fst 1125-31. This discrimination
‘as cost rnployees move thn $404 milion in Jost ways, 7 al 17,

Aduitonally, hough OFCCD is nl regained ta peal» method af pooh the SAC alleges
thal Oracle's systemic underpayment of female and Asian employes may be ue, in prt lo
Oracle's suppsession of employees’ starting pay, placement of female, Black or Altiean
‘American and Asiun employees in lower global carer levels, ond continued suppression of liir
pay tuoughout their carers. 9718-31,

The SAC algo makes the same hiring discrimination claim as made inthe Amended
Covnpfaiut, However the SAC includes supplement det abu he Firing els, tse om
discovery conducted and data produced spanitg the years 2015 though 2016, 1d. ut °F 32-39.
Adeltionatly, dhe SAC narrows OFCCP's rng clotn to focus on Oracle's dissisinatory
practices in college and university recruitment foe low-level profesional ecieal postions. tS
Thus, OFCCP des not allege tht Oracle disriminated aginst experienced eppliants For
positions iv the 7 ja group at this time. See Aevended Comp. 10. If uher discovery or

analysis rovcals discrimination against experienced applicants for PT positions, OFCCP will
amend ils Complaint as nesessary
‘Grant's college and university biting policies resulted in move than 100 quali

jad, non Asian

applicants for employment being denied employment.

nally, the SAC makes sini allegations co Hosein ie Amended Complain shat
(Oracle failed ta supply seconds requested by OCD during the comptiance review, in voltion
of regulations, and filed We produce materials densnastating whee i ounducted analyses
equed by the regulations. 44 43-46, ‘The SAC provides moe specificity about de records

‘Oracle fed to supply

1 OFCCP during the sompliunee revi und the nls filed to
conduct. fd, Since discovery saved that Oracle aot only filed to supply information
requested by OFCCP, but Failed to even collect or antain some of his information, thy SAC
speviliealy alleys wollioms Sor he flue to colle! and mintsin information ruined by the
reyultions, Af, Moreover the SAC alleges that Oracle's Fltone o even obtin information
inoluding the identity of a applicants co Oracle's eutleye and university nvruiting progam)
reesniry to conduc required unalyses and comply with is affirmative ation obligations,

violated #1 CER. 8 6044.12, and 4L CER. Paris 2, 3. SAC LAS
1. ARGUMENT,

<Affer an answer bas beeu filed, le complaint may be ameudad either by consent or "by

Teave ofthe Ada

istrative Law Judge.” 41 CFR. $ 60-30.5; sce also Fed. R Civ. P.L5(0)2).
Like tre Federal Rules. the regulations instruct that “Yeave shall be freety given where justice so
sequites.” 41. CER, § 60-30.5: sce also Fed, R Civ. P.15t0}2). thus, the Department's
Adloinitative Law Indges ike federal district cours, grant leave to amend Hberaly, unless che
amendment {1) would vuuse the opposing party undue projudier (2) is sought in bad faith (3)
‘would be futile, or (4)has been unduly delayed. See JBS US, Case No, 2017-0FC-G0002 (April
25. 2018), a2 (citing Foman v, Davis, 373 U.S. 178, 182 (1962); soe also Eminence Capita
LLC y, Aspeon, 316 F.3d 1048, 1052 (8th Ci 2003). Applying this standard, lemve to arnend
should easily be gminted.
Oravle will nat he prejudived hy the propa amendments, which isthe “louchstone of

the ingairy” na weion far leave, Shinence Capital, LLC. Aspen, dnc, 3U6T.3d 1OAR, 1052
{O1h Cir, 2008). Prejudice may oveur When an einendmnent prety uers}” the nate of he
Jitigaton, eyuies preparation of entirely new defenses, er discovery has ready closed, See,
sg, Morongo Bane of Mision Indians x Rose B03 F-21074, 1079 (8b Cir, 1990)
Iinporiamy, OFC isnt alleging any new types uf discrimination, OPCCP continas to claim
compensation iserimination and renting and Firing discrimination aetins| dhe same protected

‘emtegories. The SAC includes allegations that provide addtional support for dhe broad

discrimination allegations, bass on OFCCP's preliminary analysis of Omee's discovery
prostion io dite, These types of amencments that clarify existing claims ave eoutinly allowed
cours. Sa, Pankfdonerion, Case Na, 1997-OFC-016 Jan. 2, 2010) at 3 (noting court
Jud grated OFCCP leave to amend te comin te clarity tho eroupe affected by the
Aiscriminaon alleged in he oxiginal complain). Indeed. cont ofr allow ansendnents
involving lie more sbstamalenges bed on evidenee produced in discovery. Se, eg JBS

USA, Case Ne, 2087-07FC-00002 (April 23. 2018) allowing OFCCE « allege now types af

<ligerimination based oa information provided in discovery)

‘This comptes

we remains i its initial stages, so Oracle wll nt be prejudiced by an
antundment at this slage of the filigation, See Dunbar ». Google, bien 2012 WL 6202797, at *17

6. Cal. Pee, 12,2012) (nding ne prcjuice because merits discovery was sill open). ‘' the

eontray the propsed SAC will narrow the fswes inthe pais” remsining diseovery, focus any
vnocions, and make dis gun more efficent, Puthermor, this case as only recently bec
assigned wo this Cour, end ne schedule bs been se. See Benda. Garcia, 165 F, Supp. 2
61, #74 (ND. Cal. 2016 Linding no prejutice Heenose no ease management deadlines id
been established and discovery had mot yo eommene).

Norare the proposed amendments doe to undue delay bad fit or dilatory mative
ORCC diligently sought he formation needed ort alegalions nhs ease ~ information
shocis solely within Orscke's contol. OFCCP seeks fe send the complain its firs.

9